Thursday, August 31, 2006

Right now I'm watching Law and Order, one of the great dramatic shows on television. I enjoy taking the journey of the case with the characters. The twists and turns. But then there's that turnabout where the guy everyone knows is guilty gains some kind of advantage usually because the main characters, the protagonists, extended themselves a little bit beyond the law. Perhaps if the cops or lawyers had more discretionary power, our world will be better.

Enter last night's premiere of Justice. Instead of following the state, the viewer sees the action from the defense's point of view. Special emphasis is placed on the advantages the DA's side has in prosecution. The research before the arrest. The first crack at the crime scene, evidence and/or body(ies). The complete dependence the defense has on the prosecution to provide this information. Instead of the defense lawyer concocting a desperate insanity or self-defense plea, we see government lawyers building a story to prosecute an innocent man.

The messages are clear. Law and order are for statists. Justice is for libertarians.

5 comments:

Anonymous
said...

I started watching that show because Mom liked it and I wanted to have something to talk about and enjoy with her. I agree that sometimes they have the police or DAs go a bit too far in going after the guilty. Unfortunately by giving them the power they wanted, there is a risk of harming the innocent too.

In an episode of SVU, they find a dead baby in the Hudson. The police get access to priviliged information to find the mother. (They assume the mother was a college student and got a court order for the appropiate medical records.) None of the leads they got this way panned out. One couple lost their fetus to a miscarriage and were offended when they felt accused of killing it. Another lead to a pregant teenager whos father was very anti-abortion. He insulted and abandoned his daughter when he found out she terminated her pregnancy.

Anyway, it's not like the DA has all the advantages. All the defense has to do is get reasonable doubt, or in some cases jury nullification. Some of their tactics are disguisting (like demonizing the victim). The defense is NOT completely dependent on the prosecution. There are other ways.

Agreed that the defense has advantages too but innocent until proven guilty is a standard procedure in courts to avoid type one errors. A first crack at information is something the DA does not need to avoid type one or type two errors. I'd even argue we don't want a level playing field in the court room; we want favor slanted to the defendant. (In a later post I'll be showing why I think this is the case.)

I'm not sure why you state laws are objective and justice is subjective. I'm not arguing with it (though we are surely to disagree on degrees), I just don't understand why you brought it up.

I would say things are already slanted towards the defendant. The defendant is allowed to attack the victim in court and destroy his/her character more than the DA is. All the defendant has to do is show a reasonable doubt to a single juror while the DA has to prove his case is absolutely true to all twelve jurors. Plus if the defendant doesn't like the verdict, they can appeal while the DA cannot due to double jeapordy.

Think about this, a member of one group is accused of attacking a member of another group. One person who could be on the jury is a member of the former group and won't, under any circumstances, find the defendant guilty. If this person lies to get on the jury, how can things be more in favor of the defendant?

If the reverse happens (no way that one person will find the defendant not guilty), there is less damage because there would have to be 11 more people like that to put an innocent man in jail.

I brought up how justice is subjective for two reasons. I checked the dictionary and justice is defined by morality. Morality is always changing, and it should always change and adapt. The problem is it can change in unexpected ways. Almost every cause puts themselves on the side of justice. Terrorists believe their cause is just. So do gang bangers who shoot innocent people because they didn't show the right "props".

Now laws change too, but there is a procedure for them to change so the change is more careful. Also the US applies to everyone equally. Justice does not. In another episode of L&O called, "In God We Trust" a murderer admits to a hate crime yet tried to escape going to jail because he became a more devout Christian. Some people thought that would be justice and chances are someone who thought like that would be on the jury. Would the same thing happen if someone became a more devout Muslim, Wiccan, Atheist, etc in the US? Of course not!

The law, however, says you don't get special treatment for being of one faith or another. Justice is flexible so lends itself to elitism.

That is the other reason I brought it up. I thought libertarianism was about maximizing individual rights. How can you do that when certain people are given special rights denied to others?

Briefly: A type one error is a false positive. Finding the innocent guilty. The second type is a false negative. Letting the guilty go. I believe avoiding type one errors are more important than avoiding type two errors (hopefully I will post soon as to why) so I'm glad our legal system is slanted to the defendent.

What people think morality is changes from then and now, that's true but I would agrue that's much more careful than laws. Laws are made by a few people: hundreds in the US, and for most of history it was done by far less (a small group, such as a king and his supporters; a few cases of one guy, but those guys don't last long). When a law is made, it usually stays there forever (a notable exception is Prohibition).

What justice is, however, emerges from the consensus of the masses. This is a constant discovery process that evolves over time, changing as the world changes and people learn. It's slower than the legal side to be sure, and there's no hard, fast rules to dictate how it should emerge. But there are institutions at work and, spontaneously, an ethical order emerges.

It's worth noting that the title of this blog is taken from FA Hayek's Law, Legislation and Liberty, where Hayek makes the distinction between law (ie natural rights, and so on) and legislation (the establishment of legal norms by governments). Here, we are calling justice "law" and law "legislation" so the semantics can be confusing (especially since we are saying justice is the application of subjective morality while Hayek was referring to an absolute idea of morality, if I'm remembering correctly).

Yes in our system laws are made by a few people. But those people are aware of what they're doing. New laws and changes to existing laws are debated, discussed, and worked out by those who serve the people. (At least that's how it's suppose to work.) If they stick around a long time, then that means their purpose endures. Take criminal law for example. Murder is still on the books after more than two centuries. On the other hand, anti-homosexual laws are being challenged and changed. Stalking and voyerism laws are also being rewriten to adapt to the times. Most importantly, if an individual feels a law is unfair, he/she can sometimes do something about it.

Morality, on the other hand, is decided by far fewer people, usually religious leaders who answer to no one but their god. For most of history, justice was not "consensus of the masses" but "divine judgement". Individuals who challenged a particular more were branded by the leaders and driven out. That is why it is slower to change.

For example the law says you can be of any religion you want, if any. Morality, on the other hand, dictates you must be a member of X church and it is acceptable, even required, to try and convert others.

Justice created by "consensus of the masses" has often means mob rule. Lynch mobs, burning at the stake, tar and feathering, and general overkill. The offense may not have even been illegal, but simply a violation of unwritten rules. Look at gangland for a nice example of what this type of justice leads to.

Why do you think the Mideast is so backwards in terms of equal rights? It's partially because they let justice dictate the law. In America we have the law dictate justice. We have "All men are created equal" and that has advanced the cause of justice.

Laws are justice spelled out so everyone can understand them. That is a much better system than relying on the whims of the masses who's decision can be affected by decent orator.

As for "absolute idea of morality" I don't think such a thing exists. Since morality is a human invention, it is inherantly flawed and there is no morality in nature.